Thawing the U.S. Senate’s ‘deep freeze’

U.S. Senate Majority Leader Harry Reid speaks to reporters after the Senate stepped back from the brink of a political meltdown, clearing the way for confirmation of one of President Barack Obamas long-stalled nominations, at the Capitol in Washington, Tuesday, July 16, 2013. (AP Photo/J. Scott Applewhite)

WASHINGTON — For all the railing against dysfunction in Washington, very little had actually happened to overcome it – until this week. That’s why the agreement to begin putting an end to Senate filibusters of presidential nominees is a very big deal. It is an acknowledgement that the only way to stop political bullying is to confront the bully.

On its face, the accord allowing seven of President Obama’s executive branch nominees to gain confirmation without having to reach 60 votes would seem to be a climb-down by Democrats. They shelved plans to change the Senate rules and bar filibusters of the president’s appointments to agency and Cabinet jobs.

But this understates the magnitude of the victory. Senate Republican leader Mitch McConnell would have let the nominees through only if the Democrats promised not to alter the rules for the rest of this Congress. Yet such a capitulation would have opened the way for future filibusters.

Senate Majority Leader Harry Reid stoutly refused to sheath the sword of a subsequent rules battle. The nominees went through on the basis of a modest concession. President Obama agreed to withdraw two recess appointees to the National Labor Relations Board, Richard Griffin and Sharon Block, in exchange for confirmation of two new nominees who would be equally sympathetic to the rights of workers. It’s unfortunate and unfair that because of the filibuster, Griffin and Block had to accept recess appointments that are now the object of a lawsuit. They can have at least the partial satisfaction of being instruments in a settlement that could end the injustice to which they were subjected.

Defenders of the filibuster have let loose torrents of empty words about preserving the “traditions” of the Senate and maintaining it as the “cooling saucer” (an observation attributed to George Washington) that would temper the passions of the House. What has been happening has nothing to do with tradition or deliberation. Rather, the Republican right has radically restructured the Senate by sharply escalating uses of the filibuster, which is not, in any event, in the Constitution. This has been a power struggle, pure and simple.

Of course, Democrats have used the filibuster in the past. What’s important here – and it’s the reason this confrontation was necessary – is that the Senate GOP has gone far beyond its “normal” uses.

The Republican right has radically restructured the Senate by sharply escalating uses of the filibuster, which is not, in any event, in the Constitution. This has been a power struggle, pure and simple.

There is, first, the evidence of numbers. As Jonathan Cohn pointed out in The New Republic, filibusters of presidential agency nominations were once very rare, happening only two times each to Jimmy Carter and Ronald Reagan. Bill Clinton had nine nominations blocked, and George W. Bush had seven. Obama is “already up to 16 blocks,” Cohn noted.

Rationalizations for filibusters, moreover, have reached into anti-constitutional territory. Republicans were preventing the confirmation of Richard Cordray as director of the Consumer Financial Protection Bureau not because there were problems with him but because they were still mad that the agency, which expands consumer power over financial institutions, had been created in the first place.

Sen. Lindsey Graham, R-S.C., who partnered with Sen. John McCain, R-Ariz., to push through this deal, was admirably candid. “Cordray was being filibustered because we don’t like the law,” Graham said. “That’s not a reason to deny someone their appointment. We were wrong.”

In the end, Cordray was confirmed with 66 votes, and this was not just a procedural triumph. It was genuine shift in the balance in Washington toward consumers and away from banking interests.

Despite the persistent snarling of Senate business, Democrats might not have found the courage to carry this fight but for the work of Sens. Jeff Merkley of Oregon, Tom Harkin of Iowa and Tom Udall of New Mexico, three Democrats who started pushing their reluctant colleagues in 2011 to challenge the filibuster. The threesome’s work, in turn, unleashed a larger movement among rank-and-file progressives who understood, as Merkley put it in an interview, that the “cooling saucer” had become a “deep freeze,” and that obstruction was ultimately the enemy of progressive uses of government.

“This wasn’t about seven random nominations,” Merkley said. “This was about a new and entirely unacceptable strategy of dismantling agencies by abusing the filibuster on nominations.” The approach, he insisted, is especially congenial to the new Republican right. “If you’re putting forth an argument that ‘government is the enemy,’ it’s easier to say, ‘let’s prevent it from working.'”

This round represents a major advance for those who want government to do its job. But it will take continuing pressure to keep the obstructionists at bay.

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